Part 3Incorporation of associations

Part 3—Incorporation of associations Division 1—Incorporation 18—Eligibility for incorporation (1) An association formed— (a) for a religious, educational, charitable or benevolent purpose; or (b) for the purpose of promoting or encouraging literature, science or the arts; or (c) for the purpose of providing medical treatment or attention, or promoting the interests of persons who suffer from a particular physical, mental or intellectual disability; or (d) for the purpose of sport, recreation or amusement; or (e) for the purpose of establishing, carrying on, or improving a community centre, or promoting the interests of a local community or a particular section of a local community; or (f) for conserving resources or preserving any part of the environmental, historical or cultural heritage of the State; or (g) for the purpose of promoting the interests of students or staff of an educational institution; or (h) for political purposes; or (i) for the purpose of administering any scheme or fund for the payment of superannuation or retiring benefits to the members of any organisation or the employees of any body corporate, firm or person; or (j) for the purpose of promoting the common interests of persons who are engaged in, or interested in, a particular business, trade or industry; or (k) for any purpose approved by the Minister, is, subject to this Act, eligible to be incorporated under this Act. (2) Subject to subsection (4), an association of the kind referred to in subsection (1)(i) is not, unless the Minister otherwise approves, eligible to be incorporated under this Act. (3) Subject to subsection (4), an association which is formed for the purpose of furthering or protecting the interests of employers or employees and which is eligible for registration under the Industrial Relations Act (S.A.) 1972 is not, unless the Minister otherwise approves, eligible to be incorporated under this Act. (4) Subsections (2) and (3) do not apply to an association that was, immediately before the commencement of this Act, an association incorporated under the repealed Act. (5) Subject to subsection (6), an association of which— (a) a principal or subsidiary object is to secure a pecuniary profit for the members of the association or any of those members; or (b) a principal or subsidiary object is to engage in trade or commerce, is not, unless the Commission otherwise approves, eligible to be incorporated under this Act. (6) An association is not, for the purposes of this Act, to be regarded as having as a principal or subsidiary object the securing of a pecuniary profit for its members or any of its members or engaging in trade or commerce by reason only of any one or more of the following circumstances: (a) that the association itself makes a pecuniary profit, unless that profit or any part of it is or is to be divided among or received by the members or any of them otherwise than in accordance with section 55; or (b) that the association buys or sells or deals in or provides goods or services where those transactions are ancillary to the principal objects of the association and, in the case of transactions with non-members (other than spouses, domestic partners, children or parents of members), the transactions— (i) are not substantial in number or value in relation to the other activities of the association; or (ii) are intended to provide financial support to the association in a manner that is directly related to the objects of the association; or (iii) consist in the charging of admission fees to functions organised for the promotion of the objects of the association; or (c) that the association is established for the protection of a trade, business, industry or calling in which the members are engaged or interested, if the association itself does not engage or take part in any such activity; or (d) that the members of the association compete for trophies or prizes in contests directly related to the objects of the association. (7) An approval of the Minister or the Commission under this section may be given on such conditions as the Minister or the Commission thinks fit. 19—Manner in which application for incorporation is to be made (1) An application for the incorporation of an association must be made to the Commission in the prescribed manner and form by a person duly authorised by the association to apply for incorporation. (2) The application must be accompanied by— (a) a copy of the rules of the association; and (c) a copy of any instrument creating or establishing a trust— (i) which is referred to in the rules of the association; or (ii) upon which any rule of the association relies for its operation; and (ca) a copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association is intended to be the trustee— (i) where the contemplated trust is referred to in the rules of the association; or (ii) where any rule of the association relies on the contemplated trust for its operation; and (d) the prescribed fee. 20—Incorporation of association (1) If, on an application for incorporation duly made under this Part, the Commission is satisfied— (a) that the association is eligible to be incorporated under this Act; and (b) that the rules of the association conform with the requirements of this Act; and (c) that the name of the association— (ii) is not such as is likely to be confused with the name of any other body corporate or any registered business name; and (iv) conforms with any direction of the Minister relating to the names of incorporated associations, the Commission must, subject to subsection (2), register the rules of the association and issue to the association a certificate of incorporation. (2) The Commission may— (a) decline to incorporate an association under this Act if, in its opinion, it would be more appropriate for its activities to be carried on by a body corporate incorporated under some other Act; or (b) with the consent of the Minister, decline to incorporate an association under this Act if, in its opinion, the incorporation of the association under this Act would not be in the public interest. (3) Upon incorporation under this section— (a) the association becomes a body corporate— (i) with perpetual succession and a common seal; and (ii) with a corporate name as set out in the certificate of incorporation (in which the word "Incorporated" must appear as part, and at the end, of the name); and (b) all real and personal property held by any person for or on behalf of the association is vested in and held by the incorporated association (subject to any trusts that may affect that property); and (c) all rights and liabilities (whether certain or contingent) of the association immediately before the incorporation of the association become rights and liabilities of the incorporated association. (4) The Registrar-General must— (a) on the application of an incorporated association in which any estate or interest in land has vested by virtue of this section; and register the vesting of that estate or interest in land in the association. 21—Rights and liabilities of members (1) Membership of an incorporated association does not confer on a member, except as may be provided by the rules of the association, any right, title or interest in any real or personal property of the association. (2) Except as may be provided by the rules of the association, a member of an association is not liable to contribute towards the payment of the debts and liabilities of the association or the costs, charges and expenses of a winding up of the association. (3) Subsection (2) does not apply in respect of debts or liabilities incurred by or on behalf of the association prior to incorporation. Division 2—Amalgamation 22—Amalgamation (1) Any two or more incorporated associations— (a) may, by special resolution passed by each association, resolve to amalgamate; and (b) may apply to the Commission for amalgamation as a single incorporated association. (2) An application under subsection (1)— (a) must be made in the prescribed form; and (b) must be accompanied by a copy of the special resolution passed by each of the incorporated associations supporting the amalgamation; and (c) must be accompanied by a copy of the rules of the association proposed to be formed by the amalgamation; and (d) must be accompanied by a copy of any instrument creating or establishing a trust— (i) which is referred to in the rules of the association proposed to be formed by the amalgamation; or (ii) on which any rule of the association proposed to be formed by the amalgamation relies for its operation; and (da) must be accompanied by a copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association proposed to be formed by the amalgamation is intended to be the trustee— (i) where the contemplated trust is referred to in the rules of the association proposed to be formed by the amalgamation; or (ii) where any rule of the association proposed to be formed by the amalgamation relies on the contemplated trust for its operation; and (e) must be accompanied by such certificates and other documents as may be prescribed; and (f) must be accompanied by the prescribed fee. (3) A party to an application under this section must, at the request of the Commission, supply it with such further documents or information as the Commission may require. (4) Where the Commission is satisfied— (a) that the association proposed to be formed by the amalgamation is eligible to be incorporated under this Act; and (b) that the rules of that association conform with the requirements of this Act; and (c) that the name of that association— (ii) is not such as is likely to be confused with the name of any other body corporate or any registered business name; and (iv) conforms with any direction of the Minister relating to the names of incorporated associations, the Commission must, subject to subsection (5), register the rules of the association and issue to the association a certificate of incorporation. (5) The Commission may— (a) decline to incorporate an association under subsection (4) if, in its opinion, it would be more appropriate for its activities to be carried on by a body corporate incorporated under some other Act; or (b) with the consent of the Minister, decline to incorporate an association under subsection (4) if, in its opinion, the incorporation of the association under this Act would not be in the public interest. (6) Upon incorporation of an association under subsection (4)— (a) the association becomes a body corporate— (i) with perpetual succession and a common seal; and (ii) with a corporate name as set out in the certificate of incorporation (in which the word "Incorporated" must appear as part, and at the end, of the name); and (b) any incorporated association that was a party to the application for amalgamation is dissolved; and (c) the property of the associations that were parties to the application for amalgamation becomes the property of the incorporated association formed by the amalgamation (subject to any trusts that may affect that property); and (d) the rights and liabilities (whether certain or contingent) of the associations that were parties of the application for amalgamation become rights and liabilities of the incorporated association formed by the amalgamation. (7) The Registrar-General must— (a) on the application of an incorporated association in which any estate or interest in land has vested by virtue of this section; and register the vesting of that estate or interest in land in the association. (8) A reference in a will or other instrument to an association that is a party to an amalgamation under this section is, after the amalgamation, to be construed (subject to any provision in the will or other instrument to the contrary) as a reference to the association formed by the amalgamation. (9) Where property vests by virtue of this section in an association, the vesting of the property, and any instrument evidencing or giving effect to that vesting, are exempt from stamp duty.